Intellectual Property Rights and Cybersecurity in India: A Comprehensive Analysis

Abstract:

In this era protection of intellectual property rights is important to protect the ownership of real inventor/ owner of intellectual property. Due to advanced technology it is not so difficult to infringed the right of the owner or steal or harm the intellectual property of the holder. Here, comes the cyber security for the protection of intellectual property rights of the holder.

This research paper aims to analyze the relationship between intellectual property rights and cybersecurity in India. It provides an overview regarding legal framework governing IPRs and cybersecurity in India, explores the challenges faced by right holders, also examines the role of technology in addressing these challenges. The paper concludes with recommendations for strengthening the protection of intellectual property rights and cybersecurity in India.

Keywords:

Intellectual Property Rights, Cybersecurity, Digitalisation, Cyber Threats, Cybercrimes, Data Protection.

Introduction:

Intellectual Property Rights protects tangible and intangible works which are governed and administered by the Department for Industrial Property and Promotion (DIPP). The protection of such property against unfair competition is essential to the rights of the human creation of their minds. Resources and skills are invested in intellectual property, where the creator enjoy his right over property for specified period of time, in India as well as at international level.

1.What is Intellectual Property Rights?

Intellectual Property Rights (IPRs) are the rights associated with intangible property owned by a person/company and protected against use without consent. Thus, rights relating to ownership of intellectual property are called Intellectual Property Rights. These rights aim to protect intellectual property (creations of human intellect) by allowing the creators of trademarks, patents, or copyrighted works to benefit from their creations. The Universal Declaration of Human Rights (UDHR) also refers to intellectual property rights under Article 27 which states that “Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.”

Types of Intellectual Property

Intellectual property can consist of many types of intangibles, and some of the most common are listed below:

1.Patents

Patents are one of the most important types of IPR. It is defined under WIPO as “A patent is an exclusive right granted for an invention, which is a product or a process that provides, in general, a new way of doing something, or offers a new technical solution to a problem.” Patents act as an incentive for inventing new products and processes and form an integral part of a culture of innovation and growth. Patent protection is given only for a limited period, say 10 or 20 years.

2.Copyrights

Copyright is a legal term describing ownership of control of the rights to the use and distribution of certain works of creative expression, including books, video, motion pictures, musical compositions and computer programs.

3.Trademarks

A trademark is a symbol, phrase, or insignia that is recognizable and represents a product that legally separates it from other products. A trademark is exclusively assigned to a company, meaning the company owns the trademark so that no others may use or copy it. A trademark is often associated with a company’s brand. For example, The company Nike registered this trademark in special form format, combining the stylized word Nike with their swoosh logo.

4.Trade Secrets

Trade secrets are intellectual property (IP) rights on confidential information which may be sold or licensed. In general, to qualify as a trade secret, the information must be: commercially valuable because it is secret, be known only to a limited group of persons.

Examples of trade secrets could be a design, pattern, recipe, formula, or proprietary process. Trade secrets are used to create a business model that differentiates the company’s offerings to its customers by providing a competitive advantage.

Legislations Enacted to Protect IPR^{^[1]}

In the year 1999, the government passed an important legislation based on international practices to safeguard the intellectual property rights. The same are described below−

The Information Technology Act,2000
The Patents (Amendment) Act, 1999, facilitates the establishment of the mailbox system for filing patents. It offers exclusive marketing rights for a time of five years.
The Trademarks Bill, 1999.
The Copyright (Amendment) Act, 1999.
Geographical Indications of Goods (Registration and Protection) Bill, 1999.
The Industrial Designs Bill, 1999, replaced the Designs Act, 1911.
The Patents (Second Amendment) Bill, 1999, for further amending the Patents Act of 1970 in compliance with the TRIPS.

International Sources: There are various international treaties, conventions, accords and Protocols relating to intellectual property rights protection signed or ratified by the government of India such as Paris Convention for the Protection of Industrial Property, 1883 which was adopted by India in the year 1998. The Berne Convention, 1886 which is meant for the protection of Copyright rights and interests. India has been the signatory member of this convention. Then another one is World Intellectual Property Organisation [WIPO] Convention, 1967 which is a multiparty treaty. India joined WIPO in 1975. Then there is the Narobi Treaty, 1981 which was signed by India in the year 1983. This treaty relates to the protection of the Olympic symbol. The Budapest Treaty, 1977 is a treaty on the recognition of the deposit of micro-organisms relating to patent procedure. India has signed it on December 17, 2001. There are many more which has been signed and ratified by India like Madrid Agreement relating to international registration to marks and then a Protocol relating to the Madrid Agreement, 2013, Patent Cooperation Treaty,

2. What is Cyber Security^{^[2]}

The meaning of Cyber Security in simple way is state of being protected against the criminal or unauthorized use of electronic data, or the measures taken to achieve this. Cybersecurity is the practice of protecting systems, networks, and programs from digital attacks. These cyberattacks are usually aimed at accessing, changing, or destroying sensitive information; extorting money from users via ransomware; or interrupting normal business processes. Where, cyber security plays very important role to protect the intellectual property rights in India. International intellectual property law in cyber security plays a crucial role in protecting intellectual property rights in the cyber world. Various international conventions, treaties, and agreements have been put in place to safeguard IPRs in cyberspace and ensure disputes are resolved fairly and efficiently.

Cyber security protects against various cybercrimes, cyberattacks or cyber theft in the field of IPR. Intellectual Property Rights (IPR) and Cyber Laws cannot be separated, and online content must be protected. In cyberspace, sometimes private information is shared by a person who is not the owner. Hence, privacy is violated. One makes profit from another person’s creation. Those rights are protected under IPR.

Patent, Copyright, Trademarks, Trade Secrets, Industrial and Layout Designs, Geographical Indications etc. are intellectual property rights. When these rights are violated in cyberspace there are various remedies in law.

Intellectual property rights protecting the cyber space are as follows–

Copyright Law
Trademark Law
Patent law

Research Methodology:

“This paper is of descriptive nature and the research is based on secondary sources for the deep analysis of the IPR AND CYBER SECURITY IN INDIA. Secondary sources of information like newspapers, journals, and websites are used for the research.”

Review of Literature:

Intellectual Property Rights (IPR) and cybersecurity are two critical areas that have gained significant attention in recent years, particularly in the context of India. Cybersecurity plays a crucial role in protecting intellectual property in the digital realm. As technology advances, unauthorized access, data breaches, and cyberattacks pose significant threats to the confidentiality, integrity, and availability of intellectual property assets. Effective cybersecurity measures are essential to safeguard sensitive information, trade secrets, copyrights, patents, and trademarks from theft, infringement, or misuse.

Interconnection between IPR and Cyber Security

Intellectual property rights and Cyber security laws are connected in various ways due to digitalisation. Here are some points which highlight the connection between cybersecurity and IPR law:

For Protection of Sensitive Information: In this digital age, businesses and individuals generate and store large amounts of sensitive information, including trade secrets, patents, copyrights, and other intellectual property. Cybersecurity is important for safeguarding this information from unauthorized access, theft, or data breaches.
For Prevention of Cyber Theft and Infringement: Due to Cyberattacks intellectual property can be steal, such as proprietary software, designs, or research data. IPR law plays a role in prosecuting those who engage in cyber theft and enforcing such legal consequences for such actions.
For the Data Protection and Privacy: Intellectual property may be involves personal data and sensitive information about individuals. Cybersecurity measures help to protect this data from breaches, ensuring compliance with data protection laws. As a result, maintaining the privacy cybersecurity practices becomes critical for organizations handling intellectual property and personal data.
For Protecting Digital Copyrights: Due to ease of digital reproduction, piracy and unauthorized distribution of copyrighted content have become widespread. Cybersecurity measures can help to protect the digital copyrights by preventing unauthorized access and distribution of copyrighted material from others.
For the Patent Protection: Cybersecurity technologies can be the subject of patents. Intellectual property laws, including patent law, offer protection to cybersecurity inventions and technologies, encouraging further innovation in the field to the innovator.
For Trade Secrets Protection: For safeguarding trade secrets the cybersecurity is essential, which are valuable intellectual property assets. Due to Breaches in cybersecurity can lead to the unauthorized disclosure of trade secrets, causing significant harm to the businesses. IPR law offers legal remedies to protect trade secrets and prosecute those responsible for theft.
For the Digital Piracy and Counterfeiting: Cybersecurity measures can help to prevent the unauthorized reproduction of intellectual property and distribution of digital content, including software, music, movies, and books, combating digital piracy and counterfeiting.

Challenges faced by Right Holders:

There are several issues and challenges concerning Intellectual Property Rights (IPR) and cybersecurity in India. These issues have implications for various right holders, including individuals, businesses, government agencies, and the overall socio-economic landscape.

Online content needs to be protected and hence Intellectual Property Rights and Cyber laws cannot be separated. In cyberspace, sometimes one person makes a profit by using another person’s creation without the owner’s consent. This is a violation of privacy, and it is protected by IPR.

Copyright Infringement: Copyright protection is given to the owner of any published artistic, literary, or scientific work over his work to prohibit everyone else from exploiting that work in his name and thereby gain profit from it.

Linking
Software Piracy
Cybersquatting

Trademark Issues in Cyberspace:

Trademark means a mark capable of being depicted diagrammatically and which may distinguish the products or services of one person from those of others and will embody the form of products, their packaging, and combination of colours. A registered service mark represents a service. Trademark infringement refers to the unlawful use of a trademark or service mark which can cause ambiguity, fraud, or confusion about the actual company a product or service came from. Trademark owners can take the help of the law if they believe their marks are being infringed.^[3]

Here are some prominent issues in IPR and cybersecurity in India:

Weak Enforcement Mechanisms
Online Piracy and Counterfeiting
Lack of Cybersecurity Awareness
Insufficient Collaboration and Information Sharing
Emerging Technologies and Legal Framework
International Cooperation
Capacity Building and Skill Development

Addressing these issues requires a multi-faceted approach involving legislative reforms, capacity building, public awareness campaigns, collaboration between stakeholders, and international cooperation. By effectively addressing these challenges, India can strengthen its intellectual property ecosystem, enhance cybersecurity resilience, and promote innovation and economic growth.

Government Initiatives and Policies

a. National Cyber Security Policy

b. Cyber Crime Prevention against Women and Children (CCPWC) scheme

c. Cyber Swachhta Kendra

Role Of Technology in IPR:

The future of IPR is being shaped by some of the emerging technologies in India. The following are some crucial emerging technologies that are likely to have a significant impact on IPR:

Artificial Intelligence (AI) and machine learning (ML)

AI and ML are among the most prominent emerging technologies that will be impact IPR in India. With the emergence of AI-enabled machines, there is an impetus to redefine existing IP protection laws to make them more stringent. There is a growing concern about the lack of legal mechanisms to protect AI-generated works such as music, art, books, and films. In India, the adoption of technological advancements such as AI and ML will require a robust legal framework. To protect the creators of AI-generated work, new IPR laws and frameworks have to be implemented.

Blockchain

Blockchain is another emerging technology that has the potential to revolutionise the global economy. The technology has the ability to track and manage digital assets securely, which could lead to the development of new and better ways to register IPR. As blockchain provides a decentralised and transparent management system, its implementation could provide more transparency and secure copyrights, patents, and trademarks in India. Adopting blockchain technology would help streamline the IPR acquisition process and reduce the time and cost involved.

Internet of Things (IoT)

The Internet of Things (IoT) has brought unprecedented connectivity to the world. The technology connects the devices such as home appliances, cars, and other electronics, generating massive amounts of data. With this new level of connectivity, creative inventions will arise, which will require protection from exploitation by third parties. India has some existing legal frameworks to address IoT, such as the Information Technology Act. However, further legal and regulatory assessments will be required to reach a consensus on a uniform framework that considers the complexity of protecting IPR in the Internet of Things ecosystem.^[4]

Case Studies: Intellectual Property and Cybersecurity in India

1.THE COCA-COLA COMPANY V. BISLERI INTERNATIONAL PVT. LTD. AND ORS^[5]

This IPR case is also known as the ‘Maaza War’ case as decided by the Delhi Court. The issues raised in the court were:

Does the Delhi High Court have jurisdiction in the present case?
Is there any infringement of the trademark passing off?
Is the plaintiff entitled to get a permanent injunction?

HELD:

It was held that the Court had the purview to choose the case if the risk of encroachment exists. It was pointed out that a deliberate use of the trademark other than coordinate or circuitous utilization of the trademark was adequate to donate ward to the court to choose on the issue. The court held that it might be a well-settled position of law that sending out items from a nation is to be considered as a deal inside the nation where from the merchandise are traded, and it sums to the encroachment of the trademark. Also, “The Court granted an interim injunction against the defendant from using the mark in India as well as in the export market to prevent the plaintiff from irreparable loss and injury and quashed the appeal by the defendant”.

Criminal remedies for IPR infringement in India

Under Part II of Schedule I of the CrPC, those offences which are punishable with imprisonment for less than three years or with a fine only, are bailable and non-cognizable. However, offences punishable with imprisonment for three years and upwards but not more than seven years, are non-bailable and cognizable. Section 63 of the Copyright Act and Section 103 of the Trademark Act, provides punishment for certain offences with imprisonment for not less than 6 months and may extend to 3 years. Therefore, the contestable issue was whether the words ‘may extend to three years’ under copyright act and trademark act can be equated with the words ‘three years and upwards’ used in CrPC?

Recently, Hon’ble Bombay High court in Piyush Subashbhai Ranipa v. The State of Maharashtra on 4 February ,2021 Bench – S.V. Kotwal 9.ABA-336-21odt, anticipatory bail application No 336 of 2021 while rejecting the bail applicant has decided this issue. The Hon’ble court opined that the offences under Section 63 of the Copyright Act and under SE 103 of the Trademark Act are non-bailable. It has considered the relevant provisions under copyright law and trademark law which clearly prescribes punishment up to three years. That means the possibility of imposing a sentence of exactly three years is there. And therefore, such offences would be non-bailable. Accordingly, the Court held that the offences under Section 63 of the Copyright Act and 103 of the Trade Marks Act are non-bailable and cognizable.^[6]

Conclusion:

This research paper provides a comprehensive analysis of the intersection between intellectual property rights and cybersecurity in India. It highlights the challenges faced by right holders in the digital age and examines the role of technology in mitigating these challenges. By offering recommendations for strengthening the legal framework, enhancing enforcement mechanisms, and promoting awareness and education, this paper aims to contribute to the protection of intellectual property rights and cybersecurity in India.

There is an immense need for the Indian society to be made aware about the necessity of copyright protection in all fronts to prevent any unauthorized use and pilferage of the system. The analysis of copyright in cyberspace reveals a mixed result of new opportunities and threats. Such threats often outweigh the opportunities offered by the cyberspace and necessity arises for increasing regulations of cyberspace to protect copyrights.

And further Lack of internationally agreed principles relating to copyrights in cyberspace gives ample room for divergent domestic standards. Therefore these things are to be kept in mind for further strengthening the Indian Cyber Legislations in relation to the Intellectual property rights.

Research Paper by: Janhavi Sanjay Pawar

College name: D.E.S Navalmal Firodia Law College, Pune.

[1]¹ IndiaFililngs https://www.indiafilings.com/learn/intellectual-property-laws-in-india/ 13 July 2023

[2] CISCO https://www.cisco.com/c/en_in/products/security/what-is-cybersecurity.html 13 July 2023

[3] Geek-o-Lympics https://www.geeksforgeeks.org/geek-olympics-2023?ref=shm 17 July 2013

[4] Vaibhav Chandak ,The Future of IPR: Emerging Technologies and Legal Frameworks, Legal service India, 17 July 2023, 11.00pm https://www.legalserviceindia.com/legal/article-11944-the-future-of-ipr-emerging-technologies-and-legal-frameworks.html#:~:text=Emerging%20Technologies%20Impacting%20IPR%20In%20India&text=With%20the%20emergence%20of%20AI,art%2C%20books%2C%20and%20films.

[5] THE COCA-COLA COMPANY V. BISLERI INTERNATIONAL PVT. LTD. AND ORS

2009 SCC OnLine Del 3275

[6] Piyush Subashbhai Ranipa v. The State of Maharashtra application No 336 of 2021